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MICHIGAN UNITED
CONSERVATION CLUBS, et al.

v.

SECRETARY OF STATE, et
al.

FILED JUNE 29, 2001

No. 119274

MICHIGAN UNITED CONSERVATION

CLUBS, MICHIGAN COALITION FOR

RESPONSIBLE GUN OWNERS, ROSS

DYKMAN, DAVID K. FELBECK, and

CORRIE WILLIAMS,

Plaintiffs-Appellants,

v.

SECRETARY OF STATE and STATE

BOARD OF CANVASSERS,

Defendants-Appellees,

and

PEOPLE WHO CARE ABOUT KIDS,

Intervening

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

TAYLOR, J.

The issue here is whether 2000 Public Act 381
is exempt from the power of referendum of the Michigan
Constitution. Having granted leave to appeal and heard oral
argument, this Court finds as follows:

(1) The power of referendum of the Michigan
Constitution "does not extend to acts making appropriations
for state institutions . . . ." Const 1963, art 2, §
9.

(2) 2000 PA 381 states that "one million
dollars is appropriated from the general fund to the department
of state police . . . ." MCL 28.425w(1).

(3) An appropriation of $1,000,000 is an
"appropriation," and the Department of State Police is
a "state institution."

(4) Therefore, the power of referendum of the
Michigan Constitution does not extend to 2000 PA 381.

Accordingly, consistent with Const 1963, art 2,
§ 9 and an unbroken line of decisions of this Court interpreting
that provision,[1] the Court of Appeals is reversed, and the
relief sought in the complaint for mandamus is granted. The May
21, 2001 declaration by the Board of State Canvassers of the
sufficiency of the petition for referendum on 2000 PA 381 is
vacated and defendant Secretary of State and the Board of State
Canvassers are directed that 2000 PA 381 is not subject to
referendum for the reasons set forth herein.

Pursuant to MCR 7.317(C)(4), the clerk is
directed to issue the judgment order in this case forthwith.

I concur in the result and reasoning of the
majority opinion. I write to emphasize that the intervening
defendant retains a direct remedy, the initiative process. Under
our state constitution, this remedy is available even when the
Legislature has made an appropriation to a state institution.

I also wish to emphasize that the
Legislatures subjective motivation for making a $1,000,000
appropriation in 2000 PA 381assuming one can be accurately
identified[2] is irrelevant. Intervening defendant contends
that despite the appropriation in 2000 PA 381 and the plain
language of Const 1963, art 2, § 9, the act is subject to the
referendum process because the "purpose" of the
appropriation, as purportedly revealed by the legislative
history, was to evade a referendum. This argument is misplaced.
This Court has repeatedly held that courts must not be concerned
with the alleged motives of a legislative body in enacting a law,
but only with the end resultthe actual language of the
legislation. See Kuhn v Dept of Treasury, 384 Mich
378, 383-384; 183 NW2d 796 (1971); C F Smith Co v Fitzgerald,
270 Mich 659, 681; 259 NW 352 (1935); People v Gibbs, 186
Mich 127, 134-135; 152 NW 1053 (1915).

Our cases follow Justice Cooleys powerful
exposition of this doctrine in his seminal work on constitutional
law. It is as persuasive to us as it was to our predecessors:

The validity of legislation can never be made
to depend on the motives which have secured its adoption, whether
these be public or personal, honest or corrupt. There is ample
reason for this in the fact that the people have set no authority
over the legislators with jurisdiction to inquire into their
conduct, and to judge what have been their purposes in the
pretended discharge of the legislative trust. This is a
jurisdiction which they have reserved to themselves exclusively,
and they have appointed frequent elections as the occasions and
the means for bringing these agents to account. A further reason
is, that to make legislation depend upon motives would render all
statute law uncertain, and the rule which should allow it could
not logically stop short of permitting a similar inquiry into the
motives of those who passed judgment. Therefore the courts do not
permit a question of improper legislative motives to be raised,
but they will in every instance assume that the motives were
public and befitting the station. They will also assume that the
legislature had before it any evidence necessary to enable it to
take the action it did take. [Cooley, Constitutional Law, pp
154-155.]

YOUNG, J. (concurring).

I join and fully concur in the admirably
concise majority opinion. I write separately to provide the
rationale and analysis for my conclusion that 2000 PA 381 is
exempt from the referendum power of art 2, § 9 of our 1963 state
constitution and why I take exception to the constitutional
exegesis offered by my dissenting colleagues.

I. The Question Before The Court There is no
gainsaying that 2000 PA 381 has become the focus of a heated
debate among various segments of Michigans citizens;
Justice Cavanaghs dissent is generous in providing his own
extensive personal views on the public controversy surrounding
2000 PA 381. However important, this political issuethe
merits or demerits of the underlying actis not
before this Court. The sole question we are to decide in this
case is a legal one: Is 2000 PA 381 subject to the referral
process under the provisions of art 2, § 9? If it is, 2000 PA
381 will not become effective until the next general
electionif a majority of the voters then approve it. Const
1963, art 2, § 9; MCL 168.477(2). If the stated limitation on
the peoples referral power contained in art 2, § 9
applies, the act is not subject to the referendum process at all.

II. Factual And Procedural
Background

In December 2000, the Legislature enacted 2000
PA 381, MCL 28.421 et seq., which modifies the standards
for the issuance of concealed weapons permits. The effective date
of the law is July 1, 2001.

Intervening defendant is a group that filed
with defendants Secretary of State and Board of State Canvassers
a petition, signed by approximately 260,000 Michigan voters,[3]
requesting a referendum on the new law. Although the Board of
Canvassers initially, by a two-to-two vote, declined to certify
the petition on the basis that the law may not be subject to
referendum, on May 21, 2001, the board certified the petition.
Approximately 230,000 valid signatures supported the petition
(80,000 more than the number required).[4]

On March 23, 2001, plaintiffstwo
organizations that lobbied for the law and three individuals who
want to apply for concealed weapons permitsfiled a
complaint for mandamus in the Court of Appeals, seeking to
prevent the Board of State Canvassers from proceeding with the
canvass of the petitions. Plaintiffs argued that 2000 PA 381 is
not subject to referendum because it contains an appropriation to
a state institution, the Department of State Police, and the
Michigan Constitution provides that "[t]he power of
referendum does not extend to acts making appropriations for
state institutions . . . ." Const 1963, art 2, § 9.

As stated, plaintiffs contended that two
provisions in 2000 PA 381 make appropriations for a state
institution within the meaning of art 9, § 2. The first, § 5v
of the act, (1) creates a concealed weapon enforcement fund in
the state treasury, (2) allows the state treasurer to receive
money or other assets from any source for deposit into the fund
and to direct the investment of the fund, (3) provides that money
in the fund at the close of the fiscal year shall remain in the
fund and not lapse to the general fund, and (4) directs the
Department of State Police to expend money from the enforcement
fund only to provide training to law enforcement personnel in
connection with the act.[5] The second, § 5w(1) of the act,
provides that "[o]ne million dollars is appropriated from
the general fund to the department of state police for the fiscal
year ending September 30, 2001" for such activities as
distributing free safety devices to the public and creating and
maintaining a database of individuals applying for a concealed
weapons license.[6]

Plaintiffs further argued that defendants
Secretary of State and the Board of Canvassers had a threshold
duty to determine whether the petition on its face meets the
constitutional prerequisites for acceptance and canvassing, and
that, until this determination was made, canvassing should cease.

In an order dated April 9, 2001, the Court of
Appeals granted People Who Care About Kids permission to
intervene and accepted the amicus curiae brief of the Michigan
Association of Chiefs of Police. The panel then dismissed
plaintiffs complaint for mandamus, holdingon a ground
not raised by the partiesthat

the matter is not ripe for this Courts
consideration. The Board of State Canvassers has not completed
its canvass of the referendum petitions. MCL 168.479.[7][]

On plaintiffs application for leave to
appeal, this Court remanded the matter to the Court of Appeals
for plenary consideration of the complaint for mandamus.[8] 463
Mich 1007-1008 (2001).

On remand, the Court of Appeals denied
plaintiffs request for mandamus, holding that "2000 PA
381 is not an act making appropriations for state institutions as
contemplated by Const 1963, art 2, § 9," and that it
therefore was subject to referendum. 246 Mich App ___; ___ NW2d
___ (2001).

We granted plaintiffs application for
leave to appeal from the decision of the Court of Appeals. 464
Mich ___ (2001).[9]

III. Controlling Rules of
Constitutional Construction

Of preeminent importance in addressing the
matter at hand is an understanding of the particularized rules of
textual construction that apply to constitutional provisions.
"Each provision of a State Constitution is the direct word
of the people of the State, not that of the scriveners
thereof," Lockwood v Nims, 357 Mich 517, 565; 98 NW2d
753 (1959) (Black, J., concurring), and therefore "[w]e must
never forget that it is a Constitution we are expounding," id.,
quoting McCulloch v Maryland, 17 US (4 Wheat) 316, 407; 4
L Ed 579 (1819). Our primary goal in construing a constitutional
provisionin marked contrast to a statute or other
textsis to give effect to the intent of the people
of the state of Michigan who ratified the constitution, by
applying the rule of "common understanding." Recently,
in People v Bulger, 462 Mich 495, 507; 614 NW2d 103
(2000), we explained the rule of common understanding:

In construing our constitution, this
Courts object is to give effect to the intent of the people
adopting it. . . . "Hence, the primary source for
ascertaining its meaning is to examine its plain meaningas
understood by its ratifiers at the time of its
adoption." [Citations omitted; emphasis supplied.]

I agree with Justice Cavanaghs reliance
on Justice Cooleys explanation of the rule of "common
understanding":

A constitution is made for the people and by
the people. The interpretation that should be given it is that
which reasonable minds, the great mass of the people themselves,
would give it. "For as the Constitution does not derive
its force from the convention which framed, but from the people
who ratified it, the intent to be arrived at is that of the
people, and it is not to be supposed that they have looked
for any dark or abstruse meaning in the words employed, but
rather that they have accepted them in the sense most obvious to
the common understanding, and ratified the instrument in the
belief that that was the sense designed to be conveyed." [Federated
Publications, Inc v Michigan State Univ Bd of Trustees, 460
Mich 75, 85; 594 NW2d 491 (1999), quoting 1 Cooley,
Constitutional Limitations (6th ed), p 81 (emphasis
added).]

As expounded by Justice Cooley and this Court,
the "common understanding" principle of construction is
essentially a search for the original meaning attributed to the
words of the constitution by those who ratified it. This rule of
construction acknowledges the possibility that a provision of the
constitution may rationally bear multiple meanings, but the rule
is concerned with ascertaining and giving effect only to the
construction, consistent with the language, that the ratifiers
intended. Thus, our task is not to impose on the constitutional
text at issue here the meaning we as judges would prefer, or even
the meaning the people of Michigan today would prefer, but to
search for contextual clues about what meaning the people who
ratified the text in 1963 gave to it.

Our analysis, of course, must begin with an
examination of the precise language used in art 2, § 9 of our
1963 Constitution. See American Axle, supra at 362. Art 2,
§ 9 provides, in relevant part:

The people reserve to themselves the power to
propose laws and to enact and reject laws, called the initiative,
and the power to approve or reject laws enacted by the
legislature, called the referendum. The power of initiative
extends only to laws which the legislature may enact under this
constitution. The power of referendum does not extend to acts
making appropriations for state institutions or to meet
deficiencies in state funds and must be invoked in the manner
prescribed by law within 90 days following the final adjournment
of the legislative session at which the law was enacted. To
invoke the initiative or referendum, petitions signed by a number
of registered electors, not less than eight percent for
initiative and five percent for referendum of the total vote cast
for all candidates for governor at the last preceding general
election at which a governor was elected shall be required.

No law as to which the power of referendum
properly has been invoked shall be effective thereafter unless
approved by a majority of the electors voting thereon at the next
general election. [Emphasis supplied.]

As is apparent from the text of art 2, § 9,
the peoples right of referral is expressly limited. The
limitation relevant here is the first: There is no right of
referral for "acts making appropriations for state
institutions." There is no dispute here that the Department
of State Police is a "state institution" within the
meaning of art 2, § 9. Nor is there any dispute that 2000 PA 381
"allocated" one million dollars of public funds to the
state police for responsibilities that the act requires the state
police to perform. The contested issue is whether the
million-dollar allocation made in 2000 PA 381 constitutes an
"appropriation" within the meaning of art 2, § 9.

IV. Application

A. Was the Common Understanding
of the Article 2, Section 9 Limitation on the Right of Referral
at the Time of Ratification Different From the Plain Meaning of
the Language?

The majority construes the language of art 2,
§ 9 in a plain and natural manner. Thus, it concludes that 2000
PA 381 is an act making an appropriation to a state institution
and is thus exempt from the referral power. To read the limiting
language of art 2, § 9 in any other manner would incorporate
into that constitutional provision a meaning that is not apparent
on its face. Accordingly, unless we are able to determine that
this provision had some other particularized meaning in the
collective mind of the 1963 electorate, we must give the effect
to the natural meaning of the language used in the constitution.

Justice Cavanagh asserts that the common
understanding of art 2, § 9 is different from the plain meaning
given to this constitutional provision by the majority. Those who
suggest that the meaning to be given a provision of our
constitution varies from a natural reading of the constitutional
text bear the burden of providing the evidence that the ratifiers
subscribed to such an alternative construction. Otherwise, the
constitution becomes no more than a Rorschach[10] exercise in
which judges project and impose their personal views of what the
constitution should have said.[11]

Interestingly, no onenot the dissents,
the parties, or even the amici curiaehas attempted to
provide a scintilla of historically based evidence that provides
support for the belief that in 1963 the people of this state
understood the limiting language of art 2, § 9 to mean something
other than what it naturally and plainly says. The reason for
this omission is simple: There is not much historical background
on the provision to report in the first instance. Moreover, that
which exists fails to demonstrate that the people attributed a
meaning other than the construction the majority gives to art 2,
§ 9.

Within the limited time constraints occasioned
by the exigencies of having to decide this case by the July 1,
2001, effective date of 2000 PA 381, we have searched for
evidence that the common understanding is that proposed by
Justice Cavanagh. We have found no such historical evidence in
the record of the constitutional convention, at the time of our
constitutions ratification, or in contemporaneous news
articles that provide support for the dissents asserted
"special" common understanding of art 2, § 9.

Indeed, one might expect that the framers of
our 1963 Constitutionthe participants of the constitutional
convention that drafted the constitutional text that was
eventually ratifiedwould have provided some gloss on or
construction of the intended meaning of the art 2, § 9
limitation on the right of referral. In point of fact, the
framers provided none.

Surprisingly, during the entire constitutional
convention, excepting references to the conventions
successive procedural approvals of the provision at issue, the
framers never discussed the substance of art 2, § 9.[12]
Especially important, nothing in the convention record has any
bearing on what the framers, much less the public, "commonly
understood" about the limitation on the referral power
created by the constitutional language selected"acts
making appropriations for state institutions."

Particularly noteworthy in this regard is the
"Address to the People" accompanying Const 1963, art 2,
§ 9. The address, officially approved by the members of the
constitutional convention, provides the text of each provision of
the proposed constitution the people ratified in 1963 and a
commentary, written in simple language, explaining the import of
each provision and any changes the proposed constitution made to
comparable provision of the 1908 constitution. That address was
widely distributed to the public before the ratification
vote.[13] The address was intended as a vehicle to educate the
public about the proposed constitution.

Significantly, in the "Address to the
People" accompanying Const 1963, art 2, § 9, the framers
advise the people that this provision constitutes only a
"revision" of Const 1908, art 5, § 1, and that the
revision "eliminat[es] much language of a purely statutory
character." 2 Official Record, p 3367. The address also
notes that the revision "specifically reserves the
initiative and referendum powers to the people [and] limits
them as noted . . . ."[14] Id. (emphasis added).
There is no further reference to the art 2, § 9
"limits" on the power of referral or any explanation
regarding how those limitations were expected to function in
practice.

Thus, the 1963 constitutional record provides
no basis for concluding that the people were led to believe (or
actually entertained the notion) that the art 2, § 9 limitation
on the right of referral"acts making appropriations
for state institutions"meant or was intended to mean
anything other than what it plainly says. Similarly, I have been
unable to locate (and no one has provided to the Court) any
contemporaneous news articles or other documents circulated in
the public domain that suggest that the public in 1963 had a
specific or "common" understanding of art 2, § 9 that
diverged from the natural and plain meaning of its text.[15] The
public record concerning the 1913 amendment that incorporated the
precursor of art 2, § 9 into the 1908 constitution also fails to
establish that the people then understood the "acts making
appropriations" limitation to mean something other than what
the language plainly suggests. We have been unable to locate from
any source the actual 1913 amendment ballot language approved.
Neither the Detroit Free Press nor The Detroit News
Tribune did more than respectively advocate the rejection or
adoption of the amendment. See, e.g., Detroit Free Press,
March 22, 1913; The Detroit News Tribune, March 18, 1913.
We have found no historical basis even for a
"vicarious" common understanding of the kind asserted
by Justice Cavanagh grounded in the ratification of the 1913
amendment.

The absence of any evidence from the 1963
constitutional convention record or other contemporaneous
articles in the public domain suggesting support for some kind of
special "common understanding" about art 2, § 9
consistent with the dissents view (or any other) ought to
be conclusive. In the absence of evidence on this point, this
Court should accord the language in question its natural, plain
meaning.

B. Justice Cavanaghs Asserted
"Common Understanding" That "Appropriations"
Means "General Appropriations" is Also at Variance With
the Structure of the ConstitutionLacking any evidence that the
citizens believed they were ratifying a provision that meant
something quite different from that of the plain language of art
2, § 9, Justice Cavanagh nevertheless presumes that this
must have been the case. He is able to so conclude because he is
convinced that the natural construction the majority gives to art
2, § 9 produces an "absurd result":[16]

I am confident that the constitutional right of
referendum, in this narrow context, should not be taken away by
so transparent an artifice. Justice Cooleys "great
mass of the people" would, if asked, surely suppose that
"acts making appropriations for state institutions,"
which deny the peoples reserved power of referendum, are
general appropriations bills containing substantial grants to
state agencies. Those grants would have to ensure the viability
of the agencies, or, as the Court of Appeals put it, support the
agencies "core functions." 246 Mich App ___; ___
NW2d ___ (2001). The people of Michigan, I am certain, never
intended to authorize the 2000 lame duck Legislatures
legerdemain. [Slip op at 9.][17][]

I believe that Justice Cavanaghs
presumption is unfounded because (1) it is not grounded in an
assessment of what the voters in 1963 understood art 2, §
9 to mean, and (2) it does not give sufficient weight or meaning
to the expressly stated competing language and values embodied in
our constitution or the differences between the power of
initiative and referral.

In this regard, it is important to consider the
relationship between the constitutional power accorded to the
Legislature, Const 1963, art 4, § 1, and the specific means
chosen in the initiative and referendum provisions that check the
power of the Legislature.[18] Without question, art 4, § 1 gives
the Legislature plenary power to enact laws for the benefit of
Michigan citizens. Equally clearly, art 2, § 9 provides a means
for citizens directly to challenge Legislative action or
inaction. I believe that it is a matter of constitutional
significance that the initiative power contains no
limitation (save procedural requirements such as those concerning
when the initiative process can be commenced and the number of
people who must support it), but that the referendum power
is expressly limited by two substantive restrictionsan
exception to the power of referral for acts "making
appropriations for state institutions," and an exception for
those acts enacted to "meet deficiencies in state
funds."[19]

Stated otherwise (leaving aside momentarily the
question of what the people understood in 1963 the art 2, § 9
term "appropriations" meant), it appears unchallenged
that "acts making appropriations" are always
subject to nullification by initiative, but such acts are exempted
from the referral power. Because exercise of both the referral
and initiative powers may result in the nullification of a law
enacted by the Legislature, one may well ask: Why, when the
people enacted two provisions that are clearly intended as checks
on the constitutional power of the Legislature, would the people
substantially limit their power of referral, but not their power
of initiative? Based upon the structure of these provisions, the
answer appears obvious that the people feared more the
circumstance of preventing acts involving
"appropriations" from becoming law (the referral power)
than they feared a nullification vote on the very same bill after
it became effective. Otherwise they would not have imposed an
exception to their power of referral.

Justice Cavanagh asserts that the
"appropriations" limitation on the peoples
referral power could only have been intended to mean
"general appropriations bills containing substantial grants
to state agencies." Slip op at 9. I question why that
conclusion is justified, particularly given that even the dissent
notes the framers drafting precision concerning matters
involving the general budget. See slip op, pp 7-8. I
wholeheartedly agree with Justice Cavanagh that the framers
intended to improve and increase legislative accountability for
legislative generalbudgeting processes and were
very precise in their draftsmanship to accomplish this goal. See,
e.g., Const 1963, art 4, § 31 (general appropriation bills,
priority, statement of estimated revenue).[20] Justice Cavanagh
assumes, without providing support, that the people believed that
only general appropriation acts were referenced in art 2, § 9.

Concerning art 4, § 31, in the Address to the
People the framers advised:

This is a new section designed to accomplish
two major purposes:

1. To focus legislative attention on the
general appropriation bill or bills to the exclusion of any other
appropriation bills, except those supplementing appropriations
for the current years operation.

2. To require the legislature (as well as the
governor by a subsequent provision) to set forth by major item
its own best estimates of revenue.

The legislature frequently
differs from executive estimates of revenue. It is proper to
require that such differences as exist be specifically set forth
for public understanding and future judgment as to the validity
of each. [2 Official Record, p 3375.]

Thus, the people were specifically advised in
1963 that the focus of this provision was to ensure
accountability for the making of the entire state budget. A
reciprocal provision applicable to the Governor, art 5, §
18,[21] was also added in 1963. These were entirely new
provisions added to the 1963 constitution whereas the language of
art 2, § 9 was carried forward from the 1913 amendment to the
1908 constitution. The 1908 constitution had no provisions
comparable to art 4, § 31 and art 5, § 18.

The point is that, contrary to Justice
Cavanaghs suggestion, none of these generalbudget
provisions added in 1963 were connected by the framers to the
older language of art 2, § 9. More important for our purpose of
discerning whether there was a "special" common
understanding of art 2, § 9 as the dissent supposes, it is
noteworthy that the framers clearly never communicated to the
people that the new general budget provisions had any bearing
on other legislative acts, such as 2000 PA 381, that merely made
an appropriation of public funds to a state institution. In
short, the general budget provisions of the 1963 constitution do
not appear to be related to other kinds of bills that simply
"appropriate" for purposes other than the general
budget process.[22]

Most important to my conclusion that Justice
Cavanagh is simply wrong in supposing that art 2, § 9 refers to general
appropriation bills is the fact that art 4, § 31 provides a
definition of "appropriation bill,"[23] and only this
category of bills is tied to the annual budget process. Thus, had
the framers intended that the art 2, § 9
"appropriations" limitation on the right of referral
mean "a general appropriations bill" as urged by the
dissent, then I believe that the framers would have done two
things that they clearly did not do. First, I think the framers
would have used in art 2, § 9 the art 4, § 31 definition of
"appropriation bill." Second, I believe the framers
would have advised the public in the Address to the People of the
relationship between the newly added general budget provisions
(including the definition of appropriation bill) and the older
language of art 2, § 9 limiting the power of referendum.

When it is so apparent throughout the 1963
constitution that the framers sought to clarify the
budget-related appropriations process, I think that the
above-noted omissions underscore that the kind of
"appropriations" referenced in art 2, § 9 have nothing
to do with those referenced in art 4. Further, there is no
evidence of which we are aware that in 1963 the people had a
contrary "common understanding."

Moreover, greater assurance that there was no
"common understanding" contrary to the plain language
of art 2, § 9 is derived from the controversy that culminated in
this Courts split decision in Todd v Hull, 288 Mich
521; 285 NW 46 (1939). In Todd, this Court was called upon
to determine whether 1939 PA 3[24] was properly given immediate
effect pursuant to Const 1908, art 5, § 21,[25] notwithstanding
that, by giving the act immediate effect, the Legislature had
encroached upon Const 1908, art 5, § 1 (the precursor of Const
1963, art 2, § 9. Four members of the Todd Court agreed,
with little explanation, with the plaintiffs assertion that
1939 PA 3 was not in the category of "acts making
appropriations" within the meaning of art 5, § 21. However,
four other justices observed that

[t]here is no question but that the act makes
an appropriation. An act making an appropriation as used in the
Constitution is a legislative act which sets apart or assigns to
a particular purpose or use a sum of money out of what may be in
the treasury of the State for a specific purpose and
objects,an act authorizing the expenditure of public funds
for a public purpose. [Todd at 531.]

Regarding the referral question, these four
justices additionally opined that

[t]he claim that plaintiffs are entitled to a
referendum is effectually disposed of by the language of the
Constitution itself because if the legislature had a right to
give the act in question immediate effect, then it negatived the
idea of a referendum. [Todd, supra at 535.]

The significance of Todd is not that it
conclusively construed the same language at issue in this case.
The fact is, Todda split decisionhas no
precedential value. Todd is nevertheless highly relevant
because it involves a claim, similar to the one made here, that
the Legislatures inclusion of an appropriation in 1939 PA 3
was a "mere subterfuge," Todd at 531, to place
it within the category of acts that could be given immediate
effect and thus be immune to referendum.

Todd demonstrates that the people were
aware in 1963 that the Legislature had exercised what it believed
to be its appropriation prerogative in such a fashion as to
diminish the peoples right of referral. Notwithstanding,
the people did not seek to change the constitutional referral
language to preclude the Legislature from capriciously exercising
its power of appropriation.

V. Conclusion Determining the peoples
"common understanding" of a relatively obscure
constitutional provision ratified nearly forty years ago is
admittedly a challenging deductive enterpriseone that must
be grounded in the available evidence. Above all, it is not a
psychic exercise. On the basis of the evidence we have
independently sought, I conclude that there is no reliable
evidence that the people commonly understood anything other than
what art 2, § 9 plainly says: that the peoples power of
referral is precluded concerning any act that makes an
appropriation for a state institution. Accordingly, 2000 PA 381
falls within the category of "acts making appropriations for
state institutions" and is thus not amenable to the
peoples right of referral under art 2, § 9.

The majoritys decision today will
undoubtedly disappoint those who passionately believe that 2000
PA 381 represents bad public policy. While it will be of no
consolation, it bears restating that the serious underlying
political question is not before the Court.

In the current charged political environment,
the dissent makes an emotionally appealing argument: Why not just
let the people decide? Simply answered, the peoples ability
to decide by the referendum process is not infinite; rather, it
is circumscribed by the limitations placed in the Michigan
Constitution. While perhaps less satisfying to those who oppose
2000 PA 381, our answer is that the people are still free to
directly challenge the propriety of the legislation by
initiative. Const 1963, art 2, § 9; MCL 168.471, 168.472.
Additionally, if the people believe that the Legislature has
abused its powers by capriciously precluding their power of
referral, the traditional means of voter sanction remain recall
and the ballot box. However, the limitations imposed in art 2, §
9 on the peoples right of referral preclude that they do so
by means of referendum.

Finally, while it may be attractive to some, I
believe that the dissenters approach is not only at odds
with the constitution, but destroys the Legislatures direct
accountability to the people for its acts by interposing the
judiciary as an arbiter of essentially political questions that
are fundamentally legislative in character. Consider Justice
Cavanaghs tests of what he believes constitutes
"appropriations" that do preclude referrals under art
2, § 9: (1) grants that "ensure the viability of [state]
agencies"; or (2) grants that "support the
agencies core functions." (Slip op p 9.) Exactly
how large an "appropriation" constitutes one sufficient
to ensure the "viability" of a state agency or, for
that matter, its "core function"? What is a
state agencys "core" function, what constitutes
its "viability," and who gets to decide these
questionsthe Board of Canvassers, the Secretary of State,
the courts? The dissenters are eager to have the courts decide
these questions. Perhaps there are members of the public who
believe that the courts are competent to address these issues. I
submit that these are Delphic questions that neither a judge nor
the judicial system itself is best equipped to answer. More to
the point, the tests the dissenters urge to assess whether an act
making an appropriation is nonetheless amenable to referral despite
the express constitutional limitation are simply ones made up
from whole cloth and which have no basis in the text of our
constitution. The judiciary is not authorized to create ways of
evading the terms of our constitution; nor should the courts
manufacture tests that amount to no more than providing a means
of promoting sitting judges personal preferences to
accomplish such goals. Neither is a judicial function, and the
public should never be confused on this issue. Our courts must
refrain from engaging in such endeavors because they are beyond
our constitutional authority and competence.

MARKMAN, J. (concurring).

The issue before this Court is whether it will
act as a court of law and read the constitution in accord with
its plain language, or whether it will effect what many, perhaps
even most, in this state view as a "good" thing. The
majority opinion, in which I fully join, sets forth its analysis
simply and straightforwardly. It does so because the
constitutional issue before us is simple and straightforward. I
offer this concurrence only to emphasize the extremely important
points of disagreement between the majority opinion, and the
opinions of the Court of Appeals and my dissenting colleagues.

I. Court of Appeals

Concerning the opinion of the Court of Appeals
in this matter, I offer the following thoughts:

(1) The Michigan Constitution excepts from the
referendum process "acts making appropriations for state
institutions." It may well have been preferable for the
constitution instead to have excepted from the referendum
process: (a) merely acts that are necessary in order for the
state to "exercise its various functions free from financial
embarrassment"; (b) merely acts appropriating monies without
which state agencies "would cease to function," or
without which their "continued existence" would be in
jeopardy; or (c) merely acts that pertain to the "core
functions," or that are not "peripheral to the core
purpose," of state agencies.[26] However, the constitution
did none of these. Rather, it excepted from the referendum
process "acts making appropriations for state
institutions." In reading into the constitution these
alternative limitations upon the referendum process, the Court of
Appeals has, without warrant, substituted its own judgment
concerning how the constitution ought to read in place of
the judgment of those who actually proposed and ratified the
constitution.

(2) In particular, the Court of Appeals has,
without warrant, substituted its own judgment for that of
"We, the people of the State of Michigan" who
"have ordain[ed] and established] this
constitution."[27] "This" constitution is one
that, for better or worse, excepts from the referendum process
"acts making appropriations for state institutions." It
is not one that excepts from the referendum process a greater or
a lesser range of legislative acts, depending upon the personal
preferences of individual judges or the political imperatives of
the moment.

(3) In a truly remarkable statement, the Court
of Appeals asserts:

[E]ven if we were to conclude that the
statutory expenditures constituted appropriations for state
institutions as contemplated by [the constitution], we would
nevertheless hold that the overarching right of the people to
their direct legislative voice . . . requires that
2000 PA 381 be subject to referendum.

I would respectfully suggest that the
"overarching right of the people" is to have the
constitution that they have ratified given respect and accorded
its proper meaning. The fundamental flaw in the Court of Appeals
statement is evident in its very assertion. Who is to say, for
example, that this particular "overarching right,"
"the right to a direct legislative voice," is more
"overarching" than the right of the people to have the
legislative judgment of their elected representatives given
effect over the objections of five percent of the electorate? In
truth, in a system of constitutional government, we examine the
language of the constitution itself to determine which rights are
"overarching." Whether the referendum process or the
legislative judgment should prevail in a particular case does not
depend upon which right or which value is perceived to be more
"overarching" by a judge, but rather upon which result
is required by the terms of the constitution itself. There is,in fact, an "overarching right" to a referendum,
but only in accordance with the standards of the constitution;
otherwise, there is an "overarching right" to have
public policy determined by a majority of the peoples
democratically elected representatives.

(4) It is hard to imagine a single statement
more fundamentally at odds with the genuinely
"overarching right" of the people to responsible
constitutional government than that of the Court of Appeals. I
repeat it, for it evidences a profound misunderstanding about the
proper role of the judiciary that demands response:

[E]ven if we were to conclude that the
statutory expenditures constituted appropriations for state
institutions as contemplated by [the constitution], we would
nevertheless hold that the overarching right of the people to
their direct legislative voice . . . requires that
2000 PA 381 be subject to referendum.

What this apparently means is that,
"[e]ven if we were to conclude" that the constitution
stated one thing, the Court of Appeals panel would still
abide by its own views in holding that the constitution meant a
different thing. Thus, it could be that "[e]ven if we were
to conclude" that the constitution prohibited prior
restraints on the press, we would "nevertheless hold"
that the "overarching right" of persons to a fair trial
requires that newspapers not write irresponsibly about
high-profile criminal cases. Or it could be that, "[e]ven if
we were to conclude" that the constitution prohibited
denying criminal defendants a right to a jury trial, we would
"nevertheless hold" that the "overarching
right" of judicial efficiency requires that exceptions
sometimes be made to this requirement. In other words, no matter
what the actual language of the constitution, the Court of
Appeals panel will, in effect, create a "higher"
constitutional law whose requirements will supersede those of the
constitution ratified by "we, the people." This is not
law; it is a prescription for judicial domination.

II. Justice Cavanaghs
Dissent

Concerning the dissent of Justice Cavanagh in
this matter, I offer the following thoughts:

(1) In addition to the various standards
fashioned by the Court of Appeals in replacing those set forth by
the Michigan Constitution, the dissent adds the standard of
"great public significance." Apparently, the greater
the "public significance" of a law, the more essential
it is that a referendum be allowed to proceed, notwithstanding
the language of the constitution. For what it is worth, I am in
complete agreement that 2000 PA 381 is a matter of "great
public significance" and can easily appreciate why its
opponents wish to make it the subject of a referendum.
Nevertheless, it can be assumed that any measure that becomes the
focus of a serious referendum effort will be a matter of
"great public significance" and, in any event, the
constitution does not make distinctions between those legislative
enactments that some justices may view as of "great public
significance" and those that are viewed as of lesser
significance.

(2) Equally irrelevant to this Courts
constitutional analysis are the dissents various references
to the "lame-duck" character of the Legislature[28];
the fact that "firearms advocates and persons interested in
hunting" are "pitted" against a "coalition of
law enforcement, religious, and educational interest"; and
the fact that some individual members of the Legislature view
their colleagues as having improper motives in attaching an
appropriations provision to 2000 PA 381.

(3) The dissent chastises the majority for
having "neglected to recite" certain facts in its
opinion. With all due respect, the majority has done no such
thing. It has merely neglected to "recite" facts that
are wholly irrelevant to its legal analysis, as is typically the
case in our opinions. The majority, for example, views it as
irrelevant for purposes of its legal analysis that the law under
consideration is of "great public significance," or, in
particular, that the law relates to a highly divisive political
controversy. Rather, the constitution means exactly the same
thing whether the law at issue pertains to firearms, to farming
irrigation, or to any other conceivable subject matter.
Therefore, reciting the details or the political or legislative
history of the statute before us, beyond identifying the
appropriations that it makes, would add nothing to the
constitutional analysis. Furthermore, contrary to what would have
been the case if the dissents position had prevailed,
"future litigants," concerning whom the dissent
expresses such concern, will henceforth be apprised of the
unvarying meaning of the constitution, and will not be required
to count noses about how many justices view the law at issue in their
future case as being of "great public significance," or
whether the appropriations made in their future case
involve a "core function" or are essential to the
"continued existence" of some state agency.

(4) The dissent describes the majoritys
constitutional analysis as one that "focuses narrowly on the
superficially straightforward question," as being
"legalistic," as being "pinched," and as
being "overly literal." Such descriptions are typical
of those uttered when a judge is frustrated in his ability to
reach a particular result by the actual language of the law.
Contrary to the dissent, the majority does not interpret the
constitution "literally" or "legalistically."
There is simply no reasonable alternative interpretation to the
words "acts making appropriations for state
institutions." Again, it may well be that the dissents
formulation of the right of referendum is preferable to that of
the constitution. However, such a determination is not for this
Court to make no matter how "publically
significant" a law. As Chief Justice Marshall recognized in Marbury
v Madison, nearly two centuries ago, it is the responsibility
of the judiciary to say what the law "is," not what it
believes that it "ought" to be.[29]

(5) The dissents reference to Justice
Cooleys rules of constitutional interpretation is apt, but
misses the point. Constitutional interpretation varies from
statutory interpretation principally because constitutional
language tends to be more concise, and to relate to broader
expressions of principle, than does statutory language. The
language of constitutions, therefore, also tends to be more
susceptible to multiple interpretations than does the more
precise and more thorough language of statutes. Justice
Cooleys rules make clear how, in a constitutional context,
broad language and general words are to be given reasonable
meaning. When, however, constitutional language is straightforward,
such as the eligibility requirements for a member of
Congress,[30] or the procedural requirements of the legislative
process,[31] we accord such language its plain and ordinary
meaning. "[R]easonable minds, the great mass of the people
themselves" tend to accord words such plain and ordinary
meanings. Contrary to the dissent, Justice Cooley did not assert,
in effect, that "apple" can mean "orange," if
a group of citizens could be found who understood it in this
sense. Rather, what he asserted was that ambiguous terms,
those fairly susceptible to multiple understandings, should be
assessed by his rules. The "common understanding" of
most words is that they possess their plain and ordinary
meanings.[32]

(6) It should be noted that the dissent does
not ultimately rest its interpretation upon any specific language
or phrase contained in the constitution, since it cannot do so.
Instead, it relies upon such amorphous concepts as "the
overall approach" to legislation taken by the
constitutions framers and the people who ratified it. But,
rather than taking the framers and ratifiers of the constitution
at face value and assuming that they intended what they plainly
wrote, the dissent manages creatively to conclude that the
framers and ratifiers meant something other than what they wrote.
On what basis does it reach such a conclusion? Does the dissent
identify convincing statements in support of that proposition by
the framers? Does the dissent point to evidence that "we,
the People" were misled into believing that "acts"
or "appropriations" really did not mean
"acts" or "appropriations?" Does the dissent
offer new historical information that the ratifiers understood
that Detroit Auto Club, and other earlier decisions of
this Court, were being reversed by the Constitution of 1963? No,
there is no argument of this kind.[33] All that we are left with
is that the dissent believes that the drafters of the
constitution, and "We, the People" who ratified it, should
have adopted the referendum provision that it prefers.[34]

III. Justice Weavers
Dissent

Concerning the dissent of Justice Weaver in
this matter, I offer the following thoughts:

(1) The dissent asserts that Detroit Auto
Club stands for the proposition that only appropriations that
"enable the state to exercise its various functions free
from financial embarrassment," or without which state
agencies would "cease to function," are excepted from
the referendum process. However, Detroit Auto Club, does
not say this at all; rather, it merely stands for the proposition
that the Michigan Highway Department is a "state
institution." It does not even purport to address the issue
of what constitutes "acts making appropriations." Of
course, even if the decision had said what the dissent
asserts, no decision of this Court can permanently transform the
plain language of the constitution.

(2) The dissent asserts that "the majority
fails to recognize the importance of the referendum, and this
Courts responsibility to protect the peoples power of
the referendum, derived from the constitution . . . ."
However, a better characterization of this Courts
"responsibility," in my judgment, is that we have a
responsibility to protect the peoples power of referendum
as set forth by the constitution, and we have a
responsibility to protect the peoples power of
representative self-government as set forth by the constitution.
Indeed, the principal "responsibility" of this Court is
to read the language of the constitution faithfully. If the
people wish to modify their constitution, they may do so under
the terms of article 12, and the majority will attempt to
interpret the modified constitution faithfully. But the majority
will not act as a continuing constitutional convention and dilute
the peoples right to have their supreme law mean what it
says.

IV. Justice Kellys Dissent

Concerning the dissent of Justice Kelly in this
matter, I offer the following thoughts:

(1) The dissent contends that the majority
"ignores" the meaning of the word "for" as
used in the constitutional provision "acts making
appropriations for state institutions." I respectfully
disagree. The relevant meaning of "for" in the instant
context is "intended to belong to."[35] Clearly, in
this case, the appropriation was "intended to belong
to" the Department of State Police. Demonstrating that no
word is too straightforward not to be transmuted beyond
recognition, the dissent manages to conclude that what the
framers and the people meant by using the word "for"
was that only "appropriations aimed at satisfying the
purpose or reason for which a state institution exists" are
excepted from the referendum process. The premise of this
interpretation appears to be that there is a meaningful
distinction between an agency qua agency, and the
functions that are performed by such agency, i.e., that there is
some disembodied assemblage of functions that are carried out by
an agency that define its "essence" or "core"
as distinct from the total array of functions that it is charged
by the law with carrying out. This is plainly without any basis.
If the Legislature determined tomorrow that the Department of
State Police should, in addition to its current responsibilities,
be assigned new responsibilities now belonging to the Department
of Corrections, monies appropriated for such new responsibilities
would be every bit as much "for" the Department of
State Police as monies appropriated "for" its current
responsibilities. I am aware of no textual or other basis for
understanding "for" to mean anything at all different
in these circumstances.

(2) The dissent accurately asserts that
"[w]e start by examining the provisions plain meaning
as understood by its ratifiers at the time of its adoption."
I agree with that statement and I believe that this is exactly
what the majority has done. The dissent has failed to produce a
scintilla of evidence to demonstrate that the people of this
state in 1963 understood the language "acts making
appropriations for state institutions" to mean anything
other than what it plainly says.

(3) Because the dissent is unable to produce
evidence to contradict the idea that the people intended their
constitution to mean what its words convey, in the end, it also
relies upon such amorphous concepts as "the fundamental
purpose of the general power of referendum" to justify its
interpretation of the law. However, there is no "general
power" of referendum in Michigan, but only a specific power
of referendum as defined by the constitution. And whatever
"fundamental purpose" can be discerned to the
referendum power, such a purpose must be subordinate to the
"fundamental purpose" of a constitution itself, which
is that it establishes the ground rules for a system of
self-government, and its words, where plain, must be taken
seriously.

V. Final Query For The Dissenters

Finally, I would address the following question
to each of my dissenting colleagues: Had those who proposed and
ratified our constitution truly intended to limit the referendum
power as the majority interprets it, how should they, how could
they, have fashioned it any more clearly than they did in article
2, § 9? That is, what words should they have used that they did
not? [36]

VI. Conclusion

I respectfully believe that the Court of
Appeals and my dissenting colleagues, by transforming the plain
meaning of the words of the constitution, would engage the
judiciary in an exercise far beyond its competence and authority.
While I can certainly understand the frustrations of those who
disapprove of the substance of 2000 PA 381, such frustrations
should not be viewed as a justification for giving a meaning to
the constitution that is so irreconcilable with its language.[37]

CAVANAGH, J. (dissenting).

This case presents issues involving the
Legislatures constitutional authority and the authority of
the people of Michiganexpressly reserved in our 1963
constitutionto vote on matters of great public
significance. The statute in this case affects just such an issue
of great public significance, involving the delicate balance
between the free exercise of Second Amendment rights and the
fundamental obligation of government to protect its
citizens physical safety. Understandably, this case has
energized opposing groups of citizens to a degree rarely seen in
public debate.[38] In his concurrence, Justice Young
characterizes my observations as a "generous" statement
of my own "extensive personal views" of the
"political issue" underlying this case. Slip op at 2
(Young, J., concurring). While he is certainly correct that this
"political issue" is not before the Court, his
conclusion that I have somehow aired my views of the matter is
baffling. This dissent merely states that the underlying matter,
which led to the referendum drive, is significant and that
thoughtful people may disagree about it. If that is a
"generous" statement of my "extensive personal
views," then apparently Justice Young is equally copious
about the matter, see id., and one can only wonder what
Justice Young would conclude about Justice Markmans
generosity. See slip op at 6-7 (Markman, J., concurring)
("For what it is worth, I am in complete agreement that 2000
PA 381 is a matter of great public significance and
can easily appreciate why its opponents wish to make it the
subject of a referendum").

Similarly, this case has energized this Court,
prompting each justice to offer an opinion. I join in and agree
with the reasoning offered in the dissenting opinions by Justice
Kelly and Justice Weaver. However, I offer this opinion to
address my specific concerns with the majoritys decision.

The facts, which the actual majority opinion
has neglected to recite to either explain its opinion or to